Sorry that we haven’t had anything up on the blog lately. We have three merits briefs due at the Court within a week (two tomorrow).

Next week, I’ll be doing the color commentary (for lack of a better term) for the NPR coverage of the hearings and will be live blogging them on the Nomination Blog.

PrawfsBlawg has this response to Dahlia Lithwick’s recent article on the “living” Constitution and this post on a speech Justice Stevens recently gave, profiled by the New York Times here.

The Right Coast also comments on Justice Stevens’ speech here.

Legal Theory Blog has this post discussing “The wisdom of Hercules”, a short piece in the Economist on modeling and analysis of Supreme Court decisions and their citation networks.

Election Law Blog has this post discussing a letter Senator Specter, chairman of the Senate Committee on the Judiciary sent to Judge Roberts indicating that Senator Specter intended to ask Judge Roberts about his views on the Supreme Court’s recent federalism case, Tennessee v. Lane. According to Rick Hasen, the vitality of Tennessee v. Lane is very relevant to the question of congressional power to uphold a renewed section 5 of the Voting Rights Act. A letter Hasen has written to Specter notes that Judge Roberts’ past writings on the Voting Rights Act give special reason for concern that he would not follow Justice O’Connor’s position in Tennessee v. Lane as precedent for upholding a renewed section 5.

The Volokh Conspiracy has this post discussing this Wall Street Journal article on Justice Stephen Breyer’s new 161-page book to be released in a few weeks: “Active Liberty: Interpreting Our Democratic Constitution.”

The Legal Affairs Debate Club asks, “Is Assisted Suicide Legal?” This October, in Gonzales v. Oregon, the Supreme Court will hear a challenge to Oregon’s “Death with Dignity Act” which allows terminally ill patients told they have six months to live the right to commit suicide with the aid of a doctor. Debating the issue is Jonathan Adler, visiting professor at George Mason University and Wesley J. Smith, an attorney and the author of Culture of Death: The Assault on Medical Ethics in America.

Dahlia Lithwick asks, “Does Anyone Believe in a Living Constitution Anymore?”

ACSBlog has posted this analysis of Justice Ginsburg’s confirmation hearings titled,”The Confirmation Hearings of Justice Ruth Bader Ginsburg: Answering Questions While Maintaining Judicial Impartiality.”

SCOTUSblog commenters will notice that, beginning today, they will be required to register in order to post comments on the blog. We very much appreciate the many interesting and thought-provoking comments that we have received over the past few years and hope that they will continue; we implemented the registration feature because the comments have recently been flooded (literally to the tune of several hundred per day) with invitations to play online poker, refinance our mortgage, and buy various medications online. They’re attractive offers and all, but we simply couldn’t keep up with the onslaught. More importantly, we suspect that in the tedium of deleting all of the spam, we may have accidently deleted legitimate comments (and, if so, we apologize). Thanks for your patience during this transition, and please keep those comments coming!

The Supreme Court on Monday refused — as it was expected to do — to reconsider its controversial ruling expanding the power of local governments to seize private property for economic development. The action came as the Justices issued several routine orders while the Court remains in its summer recess. (The case was Kelo v. City of New London, 04-108; the Court divided 5-4 in that decision.).

The Court’s rules make it exceedingly difficult for a party to gain a rehearing of a decided case. Even so, property rights advocates had tried that maneuver as part of an energetic campaign to keep the issue alive and thriving. Efforts are being made in a number of state legislatures and in Congress to curb the use of the power of “eminent domain,” even though the Court had enhanced that authority if local officials opt to use it.

Monday’s list of orders indicated that Justice Sandra Day O’Connor was continuing to participate in the Court’s work over the summer. One of the orders — a denial of rehearing — indicated that she had disqualified herself from that particular action, a sign that she had taken part in all of the other orders. Forty-four cases were denied rehearing, including Kelo.

O’Connor has said she would continue to serve until her successor is qualified. That is expected to occur early in the new Term that opens Oct. 3.

Among Monday’s orders, the Court agreed to allow the Solicitor General to join in arguing for the federal government in 04-698, Schaffer v. Weast, a test of whether parents or public school officials have the burden of proof in a dispute over the educational placement of a disabled child. The case is scheduled for oral argument on Wednesday, Oct. 5.

In honor of Justice Stevens’s thirtieth year on the Court, Fordham University School of Law has organized a two-day conference, The Jurisprudence of Justice Stevens. The conference will be held on September 30 and October 1 and will feature scholars from around the country, as well as remarks by Justice Stevens himself. The event is free and open to the public; you can view the schedule here
and register here.

Foreign nationals being held as terrorism suspects at the U.S. Navy’s prison in Guantanamo Bay, Cuba, have urged the D.C. Circuit to keep their case alive, arguing that a recent Circuit Court ruling does not undercut their demand that the Bush Administration justify in court their continued detention. They outlined a narrow view of the decision July 15 in the case of Hamdan v. Rumsfeld – in vivid contrast to the broad interpretation given that decision by Justice Department lawyers early this month.

The fact that they have been allowed by the Supreme Court to file habeas challenges to their detention, the captives’ attorneys argued, means that they have a right to a court inquiry into the reasons for being held and to release, if those reasons are found inadequate. In fact, because the District Court has jurisdiction to consider their habeas petitions, the detainees’ brief contended, means that the Court must go forward and examine the validity of any further captivity. They need show no denial of constitutional rights before such an examination is made, the brief contended. (The brief was filed last week, under seal, and has just been publicly released.)

Read the rest of this entry »

(This is one of a series of posts on the impact that Supreme Court decisions have on later lower court rulings.)

If a display of the Ten Commandments is put up on city property, it stands there alone, and the government had no historical or other non-religious reason for putting it there, is it unconstitutional as an official embrace of religion? The answer would seem to depend upon how one reads Justice Stephen G. Breyer’s decisive vote and concurring opinion in the Court’s widely splintered, 5-4 decision on June 27 in Van Orden v. Perry. The answer, though, is no, according to a new decision by the Eighth Circuit — apparently the first ruling at that level to apply the Van Orden precedent to another Commandments display.

In a 10-2 en banc decision on Friday, the Circuit Court upheld the display of a stone tablet of the Ten Commandments, the only monument in a 45-acre city-owned and maintained park in the small Nebraska town of Plattsmouth (ACLU Nebraska Foundation, et al., v. City of Plattsmouth, Circuit docket 02-2444). The monument is, in fact, identical to the one that a 5-4 Supreme Court upheld in the Van Orden case, and it was donated by the same source, the Fraternal Order of Eagles.

Scores of these monuments were displayed across the country as gifts of the Eagles, and those displays have produced in recent years an array of conflicting results in lower court rulings, before the Supreme Court stepped in to resolve the issue in Van Orden, involving the Commandments monument on the grounds of the Texas state capitol in Austin. Only one thing, however, was definitively resolved by Van Orden – context means everything in judging such government displays of the Commandments.

It appears that the identical nature of the monument and of its donor, and the fact that both displays had stood for years before being challenged in court, may be where the similarity in context ends between the Texas and Nebraska displays.

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The Volokh Conspiracy has this post on using Chief Justice Rehnquist’s periodic absences from the bench this year as an opportunity to test the influence of the Chief Justice by comparing results in cases over which Rehnquist presided versus those over which Stevens presided as acting Chief to see whether there is any systematic differences in the outcomes depending on the presiding Chief.

Here is Underneath Their Robes on Justice Breyer’s 67th birthday which was earlier this week.

ElectionLawBlog has this entry on the cert petition in the Florida felony voting rights case, which was profiled by SCOTUSBlog earlier this week.

Last week, Justice Stevens gave this address to the American Bar Association at the Thurgood Marshall Awards Dinner honoring Abner Mikva.

The deepening controversy over denial of voting rights to those convicted of serious crimes — an issue that has split the Circuit Courts in recent years — is back at the Supreme Court, in an appeal challenging a Florida law. The petition for certiorari in Johnson v. Bush, Governor of Florida (docket 05-212) was filed a week ago by attorneys with the Brennan Center for Justice in New York.

The Supreme Court twice passed up review of that issue last Term, refusing in November to hear cases from Washington State and New York State. But there were good reasons for the Court not to get involved in either of those cases at that point: the Washington case had been sent back by the Ninth Circuit to a District Court for further fact-finding, and the New York case came to the Court amid clear indications that the Second Circuit was going to grant review of that case en banc if the Supreme Court refused to review a panel decision.

The Washington case (Farrakhan, et al, v. Locke, et al.) returned to U.S. District Court and is now scheduled to go to a non-jury trial in Spokane beginning next March 6. (In the District Court, it is docket 96-76). The en banc Second Circuit held a hearing on the New York case (Muntaqim v. Coombe, Circuit docket 01-7260) on June 22, and a decision is pending.

The Brennan Center for Justice had urged the Supreme Court not to hear the issue last Term, suggesting that the Justices instead await an en banc ruling by the Eleventh Circuit in the Johnson case (Circuit docket 02-14469).

That Court issued its ruling in that case on April 12. It decided that it does not violate the Fourteenth Amendment’s guarantee of equality for a state to deny those convicted of felons the right to vote, and to withhold that right even after they have completed their sentences. That part of the 12-judge decision produced only one dissent. The Court said that, even if an original 1868 ban on felon voting was motivated by racial bias, that was cured when Florida adopted a new and “markedly different” version of the ban in 1968.

Over two dissents, the Eleventh Circuit ruled that Congress did not intend the Voting Rights Act, and its protection in Section 2 of minorities’ voting rights, to apply to felon disenfranchisement laws. That part of the ruling conflicts with an earlier decision by the Ninth Circuit in the Washington case.

The Johnson appeal presents these two questions:
“1. Is a permanent felony disenfranchisement provision — like all other voting qualifications — subject to challenge under Section 2 of the Voting Rights Act on the ground that it results in a denial of the right to vote on account of race?”
“2. When a provision was enacted by a state for the purpose of disqualifying otherwise eligible black voters, and it has disenfranchised blacks at twice the rate of others for more than one hundred years, does the state bear the evidentiary burdens of production and persuasion in proving that it reenacted the provision for an independent, nondiscriminatory reason sufficient to purge its unconstitutional taint?

The Supreme Court has twice confronted felon disenfranchisement controversies in the past, but the last time was in 1986, in Hunter v. Underwood. A prior decision came in 1974 in Richardson v. Ramirez.

The dispute has intensified in recent years, as liberal advocacy groups have stepped up a litigation, lobbying and public relations campaign attempting to link the denial of voting rights to the race of individuals caught up in the criminal justice system, and thus facing the loss of voting rights if convicted. It is estimated that more than a third of all disenfranchised felons are black and that, if a current trend continues, the rate of disenfranchisement of black men could reach 40 percent in the states that have such laws.

Only two states, Maine and Vermont, allow convicted felons to vote.

PrawfsBlawg has this entry on two new papers on the Solomon Amendment litigation (the litigation is known as the FAIR case, for Forum for Academic and Institutional Rights). The Solomon Amendment litigation is due to reach the Supreme Court this Term.

Sentencing Law & Policy ponders the next SCOTUS Blakely/Booker case.

According to Bob Bauer of More Soft Money Hard Law, the FEC has released the General Counsel’s proposed changes in the rules on “electioneering communications”: communications paid by corporations and unions that, because they refer to a federal candidate, cannot be aired within 30 days of a primary and 60 days of a general election. This is another in a series of adjustments to the Shays v. FEC litigation that followed up on the BCRA litigation.

This week in the Legal Affairs Debate Club, Orin Kerr, Associate Professor of Law at the George Washington University Law School debates Susan Brenner, Professor of Law at the University of Dayton Law School. The topic is how the Fourth Amendment applies in a digital world. Professor Kerr argues that it is only matter of time before the Supreme Court has to decide decide how and when and the police can search a computer.

Balkinization has this post up titled, “Dred Scott and Kelo.” Professor Balkin argues that the closest analogy to the substantive due process argument in Dred Scott v. Sandford isn’t Roe v. Wade — its the dissenters’ position in Kelo v New London.

Underneath Their Robes has this update on law clerk hiring. Justice Ginsburg has now hired all her clerks for October Term 2006.

Tony Mauro asks, “Will Roberts Jump into the Supreme Court cert pool?”

Political Scientist Daniel R. Pinello has done this analysis of the language that the Justices use when describing certain classes of litigants. Specifically Pinello finds it troubling when Justices use the term “homosexual” instead of “gay and lesbian.”

An article in Texas Lawyer contends that, at least in Texas, United States v. Booker has not changed the sentences that judges are giving out. Sentencing Law & Policy comments on the article here.

This is another in a continuing series of reports on the impact Supreme Court decisions have on later rulings by lower courts — here, the impact of several statements by members of the Court over the years in the course of deciding Establishment Clause cases.

Using Supreme Court dicta in the absence of any controlling precedent from the Court, the Fourth Circuit on Wednesday upheld the government’s power to order public schools to conduct a daily recital by students of the Pledge of Allegiance, including its phrase “one Nation, under God.” It rejected a challenge to a daily recitation law in operation in Virginia public schools, which allows an opt-out by students who object themselves or whose parents or guardians object. (Opt-out students, though, must remain in the classroom during the recital.)

In three separate opinions, each covering somewhat different ground, the three judges on the Fourth Circuit panel agreed on one basic conclusion: the Pledge as now written is constitutional because Supreme Court Justices have said so over the years — but never in actually deciding a case on the issue. In the one Supreme Court case in which the Pledge’s constitutionality was directly at issue, the 2004 ruling in Elk Grove United School District v. Newdow, the Court declined to decide the issue, finding that the challenger there, California atheist Michael Newdow, did not have a legal right to bring his case. (Newdow, incidentally, is pursuing a new case through lower courts.)

Inevitably, the validity of the Pledge will return to the Supreme Court, perhaps in the very case just decided by the Fourth Circuit. (The attorney who brought that challenge, David H. Remes of Covington and Burling in Washington, said he and his client have not decided whether to seek further review.)

But the holding in that case (as distinguished from some of its rhetoric) is so determinedly tied to non-binding comments by the Justices that it essentially skirts at least two core questions: just why is the Pledge as written only a patriotic utterance, and can it be said with assurance that school children reciting it under state command would think of it only in that way? The Supreme Court, if it is ever to rule directly on the issue, would seem to be obliged to answer both.

Circuit Judge Karen J. Williams of Orangeburg, S.C., who wrote what appears to be the lead opinion in the Fourth Circuit case (Myers v. Loudon County Public Schools, et al., docket 03-1364), undertook to answer the first question, but not the second. Her opinion ultimately concludes that “the Pledge is by its nature a patriotic exercise, not a religious exercise.” She purports to find support for this conclusion in her reading of official acknowledgements of religion throughout American history — an exercise that neither of her colleagues joins and which one colleague (Circuit Judge Allyson K. Duncan of Raleigh, N.C.) suggests was questionable. But Williams, too, also relied upon the dicta of individual Justices through the years suggesting that the Pledge was constitutional when recited daily in public schools. That part of her opinion, which does draw the support of Duncan, notes — in partially italicized form — that “not one Justice has ever suggested that the Pledge is unconstitutional. In an area of law sometimes marked by befuddlement and lack of agreement, such unanimity is striking.”

No part of the Williams opinion (except the judgment) is supported by the third member, Circuit Judge Diana Gribbon Motz of Baltimore, who most openly concedes that she is guided solely by the Justices’ dicta. Without that “explicit guidance,” Motz writes, “this could be an extremely close case, requiring navigation through the Supreme Court’s complicated Establishment Clause jurisprudence.” Neither she nor Duncan wanted to navigate that meandering course.

Read the rest of this entry »

Yesterday we filed this petition, which involves application of the so-called Parratt-Hudson doctrine to a tenure employee’s due process right to a hearing before being terminated from public employment.

Tony Mauro has this article in Legal Times discussion the jurisprudence coming out of Tennessee v. Lane and what a Justice Roberts would mean to the outcome of a case to be decided next term, Goodman v. Georgia. Goodman v. Georgia involves the power of Congress to enact laws like the ADA that expose states to lawsuits.

The Volokh Conspiracy has this post on Rep. Maxine Water’s thoughts on Kelo. Rep. Waters has long disapproved of the use of eminent domain.

Douglas Berman of Sentencing Law & Policy has these thoughts on the ACS Convention sentencing panel. A video of the panel is available online. It featured judges Michael McConnell, Joseph Bataillon, David Coar, Marsha Berzon, Nancy Gertner and David Hamilton discussing the practical impact of the Booker and Blakeley decisions on criminal sentencing.

Justice Breyer believes politics are a threats to the Court’s independence. The Justice also asked attendees at the ABA Convention on Tuesday, “What’s wrong with citing rulings by judges in other countries?”

The Bush Administration has mounted a wide-ranging challenge in the Supreme Court to the power of federal judges to stop new anti-abortion laws before they go into effect. In a friend-of-court brief filed Monday in a pending case from New Hampshire, the U.S. Solicitor General has argued that abortion restrictions should be blocked from enforcement only if they are invalid in all possible circumstances — an argument that lower courts have increasingly refused to accept. That is an issue the Supreme Court has never explicitly decided. (A link to the SG’s brief is posted just below.)

The challenge was made in the pending case Ayotte v. Planned Parenthood of Northern New England, et al. (docket 04-1144). The Court has agreed to hear that case, involving a parental notice law for minors seeking abortions, and oral argument is scheduled for Nov. 30. President Bush’s nominee to the Court, Judge John G. Roberts, Jr., probably will be on the Court by then, and could play a significant role in deciding that case — the first abortion regulation law to be heard by the Court in five years.

One of the two issues in the case — a question that may affect virtually all statutes enacted to curb abortions, for adults or for minors — is the standard to be used in judging an initial challenge to an abortion restriction. For years, abortion rights advocates have filed constitutional challenges to such restrictions before they go into effect (through so-called “facial challenges”), claiming that the laws at issue are invalid as written and not as they would be applied individual patient by patient. Such “facial challenges” often have succeeded, so it has become common for such laws simply to never be applied. A challenge based on actual or imminent enforcement of an abortion law probably would take considerably longer, and in some sense would be more difficult.

The success of facial challenges has stirred a new abortion debate, focusing on the standard that challengers must meet against a new law. One side — and the Bush Administration has now lined up anew on that side — argues that such a challenge can succeed only if there is “no set of circumstances” in which a restriction could be legally enforced. That standard derives from a 1987 Supreme Court decision in a criminal case having nothing to do with abortion (U.S. v. Salerno).

In that 6-3 decision, Chief Justice William H. Rehnquist wrote: “A facial challenge to a legislative act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which [a statute] would be valid. The fact that [a statute] might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid, since we have not recognized an ‘overbreadth’ doctrine outside the limited context of the First Amendment.”

But abortion rights advocates have been arguing that the Supreme Court does not require that kind of proof for a facial challenge against a new abortion restriction. Rather, drawing on reasoning the Court used in 1992 in partially reaffirming Roe v. Wade (the decision in Planned Parenthood of Southeastern Pennsylvania v. Casey ), this side contends that a new curb on abortion is invalid facially if it there is proof it would impose an “undue burden” on “a large fraction” of women affected by the law. This side claims the Supreme Court reaffirmed that standard in its most recent decision nullifying an abortion law, in 2000 (Stenberg v. Carhart ).

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The federal government’s brief in the Ayotte parental notification case is available here.

Speaking at the American Bar Association’s annual Thurgood Marshall Award Dinner on Saturday night, Justice Stevens issued a stinging criticism of America’s use of the death penalty. ACSBlog reports on the speech here. Sentencing Law & Policy has this commentary on the remarks.

Sentencing Law & Policy also has this post about this morning’s Washington Post editorial criticizing the June speech given by Attorney General Gonzales in which he advocated a legislative response to Booker in the form of “the construction of a minimum guideline system.”

Todd Zywicki has this post on the Federalist Society’s report from the ABA Convention and the “conservative majority” on the current Supreme Court.

Oyez has posted these recordings of Judge Roberts’ oral arguments.

The Legal Theory Bookworm recommends Majority Rule or Minority Will : Adherence to Precedent on the U.S. Supreme Court by Harold J. Spaeth & Jeffrey A. Segal and Stare Indecisis : The Alteration of Precedent on the Supreme Court, 1946-1992 by Saul Brenner & Harold J. Spaeth.

Attorneys for a Guantanamo detainee facing war crimes charges on Monday bypassed possible review in the en banc D.C. Circuit, and appealed his case directly to the Supreme Court. The text of the petition for review is linked just below. (It is Hamdan v. Rumsfeld, docket 05-184.)

The petition for Yemeni national Salim Ahmed Hamdan is a broad challenge to the war crimes trials procedures to be used in his case and others involving terrorism suspects — that is, the procedures under the “military commissions” ordered into existence in November 2001 by President Bush as one of his first responses to the terrorist attacks of Sept. 11, 2001.

The appeal raises two questions:
“1. Whether the military commission established by the President to try petitioner and others similarly situated for alleged war crimes in the ‘war on terror’ is duly authorized under Congress’s Authorization for the Use of Military Force (AUMF), Pub. L. No. 107-40, 115 Stat. 224; the Uniform Code of Military Justice (UCMJ); or the inherent powers of the President?
“2. Whether petitioner and others similarly situated can obtain judicial enforcement from an Article III court of rights protected under the 1949 Geneva Convention in an action for a writ of habeas corpus challenging the legality of their detention by the Executive branch?”

Hamdan’s case is the most important war-on-terrorism appeal to reach the Supreme Court so far. Two rulings by the Justices in 2004 established some basic legal rights for detainees, to challenge their detention, and upheld presidential authority to detain foreign nationals — at least for limited purpose. But the Hamdan case is the first to mount a direct challenge to plans to punish some of the detainees, and it raises legal issues that also will affect the rights of Guantanamo detainees who are not charged with war crimes but face the prospect of being held indefinitely.

In Hamdan’s case, the D.C. Circuit on July 15 broadly upheld the President’s power to establish war crimes tribunals for foreign nationals, based on a finding that Congress had authorized the President to do so. The Circuit Court also ruled that the detainees may not pursue legal challenges in court based on international treaties, including the Geneva Convention.

Although Hamdan’s petition, in the first question, seeks to test the President’s claim of “inherent powers” during wartime, the D.C. Circuit did not pass upon that issue.

Circuit Judge John G. Roberts, Jr., President Bush’s nominee to the Supreme Court, joined in the D.C. Circuit ruling. If confirmed for a seat on the Court, he is expected to be recused from acting on the Hamdan appeal, because of his prior membership on the Circuit panel. That does raise the prospect, if review is granted, that the Court might ultimately split 4-4 in deciding the case, thus affirming the D.C. Circuit. That could be a factor that might influence the Court in deciding whether to hear the case at all.

The petition makes a strong effort to convince the Court to step in now, before Hamdan is actually tried. “If the Court were to decline certiorari,” the petition says, “it may not have occasion to reach these weighty issues again for many years.” Review of the case through the Executive branch could run on without time limits, the petition asserts. It adds: “If the Court does not grant certiorari, the sweeping authority given to the President may be his for several years before the Court has another opportunity to clarify even the most basic ground rules for commissions.”

Hamdan’s lead civilian attorney is Georgetown professor Neal K. Katyal, and his lead military attorney is Lt. Cmdr. Charles Swift of the Office of Military Commissions.

Neal Katyal is filing today this petition for certiorari (with appendix) in the Hamdan case challenging the Gitmo military commission scheme.

Chief Justice William H. Rehnquist returned to a hospital in Arlington, Va., on Thursday afternoon for treatment of a fever, the Associated Press reported, quoting a Court spokesman. The AP and other wire services later noted that he had been released after being evaluated.

The AP said that Rehnquist was taken to Virginia Hospital Center after developing a fever. That report was attributed to a public information officer of the Court, Edward Turner. Mr. Turner could not be reached for further comment.

Rehnquist was hospitalized for two nights in July after developing a fever. He is being treated for thyroid cancer.

Professor Bainbridge has this post discussing John Roberts’ apparently devout Catholic faith. He argues that it is legitimate to question a nominee on his faith, and that that the Senate’s advise and consent function goes beyond a nominee’s bare qualifications to include evaluation of the nominee’s judicial philosophy.

The National Archives has posted online these memos written by Roberts during his tenure at the Justice Department.

Underneath Their Robes gossips about the Judges who were not tapped for the high court.

Here ExPost argues that it is time for the Supreme Court to address the constitutionality of recess appointments. Marty Lederman, blogging on Balkinization, argues that the recess appointment of John Bolton to be ambassador to the United Nations in unconstitutional.

The federal government, as expected, moved this week to expand its victory in court on the creation of military war-crimes tribunals to its handling of terrorism suspects now being held at Guantanamo Bay, Cuba. It did so by suggesting a broad interpretation of the D.C. Circuit’s ruling July 15 in the tribunals case, Hamdan v. Rumsfeld (04-5393). That decision, two new Justice Department briefs filed on Tuesday argue, “significantly undercuts the claims advanced” by the Guantanamo detainees.

The two controversies are not identical. In Hamdan, a Yemeni national captured in Afghanistan and designated a terrorist sought to challenge his forthcoming trial before a “military commission” — the war-crimes tribunals that President Bush set up outside the military and civilian court systems. In the Guantantamo detainees’ cases, a large group of suspects who face no criminal charges are seeking to challenge their long-term detention at the U.S. Naval prison camp in Cuba. But similar legal issues arise in the cases, and the government’s new filings sought to draw close parallels between the two proceedings.

In Hamdan, the D.C. Circuit ruled that the President had the authority, granted by Congress in the post 9/11 resolution, to create the special war-crimes courts to try individuals like Salim Abdel Hamdan. It also ruled that Hamdan had no legal right to seek court enforcement of the Geneva Convention Relative to the Treatment of Prisoners of War. And it concluded that Hamdan could not claim prisoner-of-war status.

The new Justice Department filings contend that the Hamdan ruling bolsters the government’s argument that Congress’ post-9/11 resolution gave the President wide authority to detain enemy combatants, and was not limited to capture or prosecution of only those individuals personally involved in the 9/11 terrorist attacks on the U.S. (The Department asserts again in one of the new filings that the President has inherent constitutional authority, even without authorization for Congress, to order the detention of terrorism suspects — an argument that the D.C. Circuit did not pass upon in the Hamdan decision.)

The Department also argues that the Hamdan ruling rightly gave a narrow interpretation of the Supreme Court’s 2004 decision in the first detainees’ case (Rasul v. Bush). This, the Department goes on, left undisturbed “the established principle” that foreign nationals being held outside U.S. territory have no constitutional right to due process. Thus, it suggests, the due process claims raised in the new detainees cases are without merit.

In addition, the Department says that Hamdan squarely rejected any role for U.S. civilian courts in enforcing the Geneva Convention — any version of the Convention — so the detainees have no claims to make on that point, either. “These holdings are binding…and are dispositive” of any Geneva claims, it argues. The same is true, it adds, for claims advanced under other international treaties.

Similarly, the Department finds in the Hamdan decision a rejection of any claim to prisoner-of-war status under U.S. Army regulation 190-08. The President, according to Hamdan, had the authority to deny POW status to the detainees, the Department says.

The detainees’ lawyers have until next Tuesday to provide the D.C. Circuit with their interpretation of the impact, if any, of Hamdan on the detainees’ rights. The D.C. Circuit has scheduled a hearing in the detainee cases for Sept. 8.

(The Hamdan case, now a significant precedent at least in the D.C. Circuit, is expected to go on to the Supreme Court. If it does, and if Judge John G. Roberts, Jr., is confirmed as a Justice on the Court, he presumably would not take any part in any consideration of decision on the Hamdan case. He was a member of the panel in that decision. He told the Senate Judiciary Committee this week that, as a member of the Court, he would “recuse myself from matters in which I participated while a judge on the court of appeals.”)

(NOTE: Thanks to Richard Samp of the Washington Legal Foundation for assistance with this post.)

The federal government’s appeal in the massive anti-racketeering case against the tobacco industry now is not expected to be considered by the Supreme Court at its opening Conference of the new Term, on Sept. 26. It also may be that, when the Court does decide for or against granting review, only an eight-member Court will do so.

The petition in U.S. v. Philip Morris USA, et al. (docket 05-92) was filed July 18, and the industry response thus was due on Aug. 17. That probably would have been early enough for the case to be placed on the Sept. 26 Conference agenda. But the Court has given the industry another month — until Sept. 16 — to file its expected opposition to review. That is likely to mean the case will not come up until the Conference of Oct. 14, at the earliest.

If Associate Justice-nominee John G. Roberts, Jr., misses the opening Conference, as now seems likely because the Senate schedule on his nomination is so tight, he may not be able to take part even when the case does come before the Conference later on. On the D.C. Circuit, he chose not to participate when the en banc Court denied review on April 19. He did not give a reason, but it might have been because his wife’s law firm has been involved in the litigation. His non-participation at that level also might be an indication that he would be recused in the Supreme Court, too.